Citation Nr: 1140147
Decision Date: 10/28/11 Archive Date: 11/07/11
DOCKET NO. 09-29 131 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUE
Entitlement to service connection for cause of the Veteran's death.
REPRESENTATION
Appellant represented by: Tennessee Department of Veterans' Affairs
ATTORNEY FOR THE BOARD
Donna D. Ebaugh
INTRODUCTION
The Veteran served on active duty from May 1966 to April 1969. He died in October 2000. The Appellant is the Veteran's surviving spouse.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the RO in Nashville, Tennessee.
In May 2011, the Board requested an outside medical opinion (OMO) regarding the issue on appeal. The opinion has been received and the case is now ready for further disposition.
In May 2011, the Board requested a medical opinion from the Veterans Health Administration (VHA) in accordance with 38 C.F.R. § 20.901(a) (2011). The requested opinion has been provided and has been associated with the Veteran's VA claims folder. The VHA opinion has been provided to the appellant and her representative on August 9, 2011. The appellant was afforded 60 days to provide additional argument or evidence. To date, there has been no response.
FINDINGS OF FACT
1. The certificate of death indicates that the Veteran died in October 2000 at the age of 52 years from hepatorenal syndrome which resulted from cryptogenic cirrhosis.
2. The Veteran was not service-connected for any disorder at the time of his death.
3. Cirrhosis of the liver was not shown during active duty service or for many years thereafter, and is unrelated to active duty service, including exposure to Agent Orange in service.
CONCLUSION OF LAW
Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1131, 1310, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.312 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011).
Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486.
In the context of a claim for DIC benefits, § 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007).
While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to provide a
§ 5103(a)-compliant notice prior to the adjudication of the claim.
Here, in a letter dated in September 2008, the Appellant was informed of what evidentiary requirements for establishing a claim for cause of death and of her and VA's respective duties for obtaining evidence. She was also advised of the type of evidence she could submit. A follow up letter in May 2009 described the requirements for service connection related to Agent Orange exposure. She was informed that mere exposure to herbicides (Agent Orange) was not a disability, and that she needed to provide evidence that the Veteran's cirrhosis of the liver was due to his herbicide exposure. The Board notes that the Hupp elements were not met. She was not provided a statement of the conditions that the Veteran was service connected for at the time of his death nor an explanation of the evidence and information required to substantiate a DIC claim based on a previously service connected condition. However, the Appellant is not prejudiced as the Veteran by this oversight as he was not service-connected for any disability prior to his death. Moreover, aside from an earlier claim for non-service connected pension benefits, he did not any previously service connected disability or have any claim for service connection pending at the time of his death. Thus, a remand for the Hupp notice would only unduly delay resolution as the Appellant is not seeking accrued benefits or cause of death due to a service-connected disability.
With these letters, the RO effectively satisfied the notice requirements with respect to the issue on appeal, which was subsequently readjudicated in a May 2009 statement of the case. Under these circumstances, the Board finds that adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an statement of the case or supplemental statement of the case, is sufficient to cure a timing defect).
Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011). In a cause of death claim, VA has a duty to obtain a medical opinion if such is needed to assist the appellant in substantiating the claim. DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008).
After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records and associated private treatment records. Neither the Appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication.
The Board acknowledges that in April 2010, the Appellant sent an authorization and consent form for retrieval of private treatment records from a Dr. S. VA was unable to obtain Dr. S's records. An April 2010 Report of Contact with HCA Healthcare indicates that Dr. S. is deceased, and that, although there is a log of the Veteran having received treatment, there were no medical records. The RO was advised that the records are only kept for seven years and then are destroyed. Such was documented in the file in April 2010. There is no record that VA contacted the Appellant to obtain the records by other means.
However, the Board finds that the Appellant is not prejudiced. Specifically, when the Appellant submitted the authorization and consent form, she indicated on the form that Dr. S. was deceased, that she had not been able to obtain the records herself, and that she was not sure if VA would be able to obtain the records because the office had been closed for quite some time. As VA has confirmed that Dr. S. is deceased and that HCA Healthcare confirmed his records have been destroyed, and the Appellant has already indicated that she does not have the records nor another means of retrieving the records, a Remand to inform the Appellant of the unavailability of the records and invite her to procure them by other means, would be futile and would unduly delay resolution.
Further, in May 2011, the Board sought an outside medical opinion (OMO) regarding the cause of the Veteran's death and whether his death was related to his diabetes mellitus, type II, which would have been presumptively service-connected due to his service in Vietnam. The Board acknowledges that while the OMO specifically addressed the Board's questions, the OMO did not use the "as likely as not" or "less likely than not" language in answering whether the Veteran's cirrhosis was related to service or whether the Veteran's diabetes contributed substantially or materially to his death. Regarding the question of whether diabetes contributed substantially or materially to the Veteran's death, the OMO examiner plainly stated that she found no evidence to support the claim that his diabetes contributed substantially or materially to his cause of death. She expressed clear rationale for her statement. Regarding the question of whether the Veteran's cirrhosis was related to service, the OMO discussed the various causes of cirrhosis and the fact that she saw no evidence of those causes as having occurred during the Veteran's service. Thus, while not following the exact wording of the remand, the findings made in the OMO report clearly address questions on appeal and provide conclusive opinions with respect to the same. The Board finds that the OMO substantially complied with the requested opinion.
Based on the foregoing, the Board finds that the OMO is a reliable and accurate opinion upon which to base a decision. The OMO examiner reviewed the Veteran's medical records and thoroughly answered all of the Board's questions. Further, the Board held the claim open for more than 60 days following the issuance of the OMO to the Appellant. To date, the Appellant has not responded.
Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Service Connection for the Cause of the Veteran's Death
In order to establish service connection for the cause of the Veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. For a service-connected disability to be the cause of death it must singly, or with some other condition, be the immediate or underlying cause, or else be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.
In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1).
Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. Id.
There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In such a situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4).
In the alternative, service connection for the cause of death may be warranted where the evidence indicates that the cause of the Veteran's death should have been service-connected. That is to say that, to establish service connection for a particular disability found to have caused his death, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304.
In those cases, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).
Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2011). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the Appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
As is relevant here, if a veteran was exposed to an herbicide agent during active military service, the following diseases shall be service-connected, subject to the requirements of 38 C.F.R. § 3.307(a), even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, all chronic B-cell leukemias, Type II diabetes mellitus, Hodgkin's disease, ischemic heart disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain soft-tissue sarcomas. 38 U.S.C.A. § 1116(a)(2) (West 2002); 38 C.F.R. § 3.309(e) (2011).
Notwithstanding the above, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
In this case, regretfully, the Veteran died in October 2000. According to his death certificate, the primary cause of death was hepatorenal syndrome due to cryptogenic cirrhosis. Indeed at the time of death, he was on the liver transplant list and had been diagnosed with cryptogenic cirrhosis of the liver. He was not service connected for any disorders. The Appellant was married to the Veteran from June 1977 until the time of his death, and is the surviving spouse.
It is the Appellant's primary contention that her husband's exposure to Agent Orange while on active duty led to his cryptogenic cirrhosis of the liver. For the reasons stated below, service-connection is denied.
First, regarding exposure to Agent Orange, the Veteran's DD-214 indicates service in the Republic of Vietnam from July 1968 to April 1969. His service records also indicate receipt of the Vietnam Service Medal. Such establishes that he is presumed to have been exposed to Agent Orange while on active duty, and that he would be entitled to the presumption of service connection for any of the above listed diseases.
Cryptogenic cirrhosis of the liver is not one of the disorders that may be presumptively related to exposure to Agent Orange. In fact, the Secretary specifically found that metabolic disorders, including changes in liver enzymes, were not presumed to be related to Agent Orange exposure. Notice, 75 Fed.Reg. 32540 (2010). Moreover, the Secretary has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 75 Fed. Reg. 81,332 (Dec. 27, 2010). Based on the foregoing, service connection for the cause of the Veteran's death on a presumptive basis is not warranted.
Next, although the Veteran had a diagnosis of diabetes mellitus, type II upon his death, which is presumed to be related to herbicide exposure, the Board finds that the Veteran's diabetes did not cause or contribute substantially or materially to his death. The Veteran's death certificate again indicates that the Veteran died from hepatorenal syndrome which resulted from cryptogenic cirrhosis. There is no competent evidence of record relating the Veteran's diabetes mellitus to his death, to include his fatal cryptogenic cirrhosis.
On the contrary, in the June 2011 OMO, completed by a specialist in internal medicine, the examiner determined that the Veteran's cryptogenic cirrhosis of the liver was less likely than not related to his diabetes mellitus, type II. The examiner based her opinion on the Veteran's risk factors for developing chronic liver disease including a previous history of heavy alcohol use and morbid obesity. She also found no evidence that the Veteran had a fatty liver. She placed significance on the medical records dated in 1998 which indicated that despite the presence of cirrhosis at that time, the Veteran was not diagnosed with diabetes. Further, the examiner concluded that because the Veteran's type II diabetes was not diagnosed until 2000, it did not contribute to the development of his liver disease.
Further, the June 2011 OMO noted that there was no evidence to support a finding that the Veteran's type II diabetes contributed substantially or materially to his cause of death, combined to cause death, or aided or lent assistance to the production of death. She reached this conclusion following a review of the Veteran's hospital discharge summary which did not indicate that his diabetes was out of control or had reached any end-stage complications. Moreover, the OMO opined that the Veteran appeared to have developed cirrhosis sometime in the 1990's and it progressed rapidly from 1998 to end stage liver disease.
Next, although the Appellant's primary claim is that the Veteran's cryptogenic cirrhosis of the liver was attributable to Agent Orange exposure on a presumptive basis, the Board has also considered whether service-connection is warranted on a direct basis. The Appellant argues that the Veteran's liver disease had its onset in service or shortly thereafter. Specifically, she maintains that had symptoms of fatigue and skin rashes since service and abnormal liver studies since the late 1970s. The totality of the evidence does not support such a conclusion.
Significantly, the Veteran's service treatment records are silent as to any symptoms related to a liver disorder or any of his other disorders at the time of death, including obesity. Service treatment records indicated that he was of medium build, 6'4" and weighed just over 200 pounds. No liver or other relevant disorders were noted in service. The post-service evidence also does not reflect liver symptomatology for many years after service discharge. The first indication of such a disorder was not until he was diagnosed with cryptogenic cirrhosis of the liver in November 1998, nearly 30 years after he left active duty in 1969. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). Moreover, when he filed his claim for pension benefits in June 2000, the Veteran reported the onset of his cirrhosis in November 1998. He made no reference to service or to liver trouble prior to 1998. See Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim).
Reference is also made to a November 1998 treatment report that notes that the Veteran gave a history of being in his "usual state of health" until approximately August 1998, when he presented to his primary physician with complaints of fatigue, edema, and shortness of breath. Such weighs heavily against the more recent history provided by the Appellant. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative weight than a history reported by the Veteran). Indeed, the Board finds there would be no useful purpose in reporting a false medical history to the physician. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).
Thus, based on the foregoing, the Board finds there is no evidence that the Veteran's crytogenic cirrhosis had its onset in service or for many years thereafter. A continuity of symptomatology has also not been established based on the competent evidence of record.
The Board has also considered statements by the Appellant relating the Veteran's cryptogenic cirrhosis of the liver to his active service. Such includes the Appellant's contention that the Veteran had a metabolic liver disease known as porphyria cutanea tarda, in service, which led to his cirrhosis and ultimately, his death. However, for the following reasons, the Board finds the Appellant's statements lack competency.
The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, neither the Veteran nor the Appellant are competent to provide testimony regarding the etiology of his cryptogenic cirrhosis of the liver. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). Because cryptogenic cirrhosis of the liver is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's cryptogenic cirrhosis are found to lack competency. As such, the Board finds the statements have no probative value in determining whether the Veteran's cause of death is related to service.
Moreover, the June 2011 OMO addressed the issue of direct service connection and the examiner concluded that she saw no evidence to support the claim that the Veteran had hepatitis, blood transfusions, or any other exposure to viral hepatitides in service. She also noted that there was no evidence to indicate that the Veteran had the metabolic liver disorder known as "porphyria cutanea tarda," in service.
Significantly, neither the Veteran's private physicians, nor the OMO examiner, were able to attribute his liver disease to service. Based on the foregoing, the competent evidence does not show that the Veteran actually had a service-connected disability that was either the principal or a contributory cause of his death nor should he have been service-connected for a disability that was the principal or contributory cause of his death (i.e., diabetes mellitus, type II and/or alcohol consumption in service).
The Board has considered the statements made by the Veteran that were recorded in a November 1998 private treatment record in which the Veteran reported that he used to drink heavily while in Vietnam and that he drank a fifth of whiskey on a daily basis in Vietnam. He reported that since Vietnam he was a social drinker but that he had not drunk alcohol in three months prior to the doctor's appointment. To the extent that the Appellant raises the Veteran's statements as a claim that his alcohol consumption in service led to his cirrhosis and death, service connection is not warranted on the basis of alcohol consumption in service. 38 U.S.C.A. § 1110, "no compensation shall be paid if the disability is a result of the Veteran's own willful misconduct or abuse of alcohol or drugs." VA regulation defines the frequent use of drugs to the point of addiction as willful misconduct, but also notes that "where the use of drugs or addiction thereto results from a service-connected disability, it will not be considered of misconduct origin." 38 C.F.R. § 3.301(c)(3) (2011). The Board acknowledges that the U.S. Court of Appeals for the Federal Circuit has held that 38 U.S.C.A. § 1110 does not preclude compensation for an alcohol or drug abuse disability that is secondary to a service-connected disability. Allen v. Principi, 237 F.3d 1368, 1381 (Fed.Cir.2001). Secondary service connection shall be awarded for disabilities that are "proximately due to or the result of a service connected disease or injury." 38 C.F.R. § 3.310(a). However, Allen does not apply to the present case as the Appellant here is claiming that the Veteran's alcohol led to his disability, not that a service-connected disability led to the alcohol consumption. No other disability has been attributed to the alcohol consumption in service. Therefore, the Veteran's and Appellant's statements concerning service connection due to alcohol consumption, have no probative value.
Further, the Veteran's private physician who recorded the Veteran's November 1998 statements regarding alcohol consumption, indicated an impression of chronic liver disease, likely complicated by cirrhosis. The physician also noted that at that time, the etiology of his cirrhosis was unclear and opined that a possible etiology was non-alcoholic steatohepatitis. Other private treatment records dated in December 1999, January 2000, and October 2000 also indicate cryptogenic cirrhosis with unknown etiology.
Therefore, in light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for the cause of death and there is no doubt to be otherwise resolved. As such, the appeal is denied.
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ORDER
Service connection for the cause of the Veteran's death is denied.
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MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs